[Federal Register Volume 68, Number 138 (Friday, July 18, 2003)]
[Rules and Regulations]
[Pages 42874-42882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18075]



[[Page 42873]]

-----------------------------------------------------------------------

Part III





Department of Transportation





-----------------------------------------------------------------------



Federal Aviation Administration



-----------------------------------------------------------------------



14 CFR Parts 121 and 129



Flightdeck Security on Large Cargo Airplanes; Final Rule

  Federal Register / Vol. 68, No. 138 / Friday, July 18, 2003 / Rules 
and Regulations  

[[Page 42874]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 121 and 129

[Docket No.: FAA-2003-15653; Amendment Nos. 121-287 and 129-37]
RIN 2120-AH96


Flightdeck Security on Large Cargo Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: This action provides an alternative means of compliance to 
operators of all-cargo airplanes that are required to have a reinforced 
security flightdeck door. This rule allows those operators to either 
install reinforced doors or adopt enhanced security procedures approved 
by the Transportation Security Administration.

DATES: This rule is effective on August 18, 2003. Comments must be 
received by September 16, 2003.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
2003-15653 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that the 
FAA received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
these proposed regulations in person in the Dockets Office between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
Dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Joe Keenan, Program Management Branch 
(AFS-200) Flight Standards Services, Federal Aviation Administration, 
800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
9579; facsimile (202) 267-5229, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    This final rule is being adopted without prior notice and prior 
public comment. The Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; February 26, 1979), 
however, provide that, to the maximum extent possible, operating 
administrations for the DOT should provide an opportunity for public 
comment on regulations issued without prior notice. Accordingly, 
interested persons are invited to participate in this rulemaking by 
submitting such written data, views, or arguments, as they may desire. 
Comments relating to environmental, energy, federalism, or 
international trade impacts that might result from this amendment also 
are invited. Comments must include the regulatory docket or amendment 
number and must be submitted in duplicate to the address above. All 
comments received, as well as a report summarizing each substantive 
public contact with FAA personnel on this rulemaking, will be filed in 
the public docket. The docket is available for public inspection before 
and after the comment closing date.
    The FAA will consider all comments received on or before the 
closing date for comments. Late filed comments will be considered to 
the extent practicable. This final rule may be amended in light of the 
comments received.
    Commenters who want the FAA to acknowledge receipt of their 
comments submitted in response to this final rule must include a 
preaddressed, stamped postcard with those comments on which the 
following statement is made: ``Comments to Docket No. FAA-2003- .'' The 
postcard will be date-stamped by the FAA and mailed to the commenter.
    Comments that you may consider to be of a sensitive security nature 
should not be sent to the docket management system. Send those comments 
to the FAA, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., 
Washington, DC 20591.

Availability of Final Rule

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through the 
Office of Rulemaking's Web page at http://www2.faa.gov/avr/arm/nprm.cfm?nav=nprm or the Federal Register's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this final 
rule.

What Is the Small Business Regulatory Enforcement Fairness Act?

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact its local FAA official, or 
the person listed under FOR FURTHER INFORMATION CONTACT. You can find 
out more about SBREFA on the Internet at http://www.faa.gov/avr/arm/sbrefa.htm, or by e-mailing us at [email protected].

Background

What Rule Changes Are You Making?

    We are issuing a rule that allows an alternative means of 
compliance with a current FAA regulation. This rule allows operators of 
large cargo airplanes to either install reinforced flightdeck doors or 
adopt enhanced security procedures approved by the Transportation 
Security Administration.

Isn't Airplane Security the Responsibility of an Agency Other Than the 
FAA?

    Yes, the Aviation and Transportation Security Act (ATSA) enacted by 
Congress on November 19, 2001, transferred airplane security to the 
Transportation Security Administration (TSA). The safety of the 
physical airplane structure and the operational rules of airplanes are 
still the responsibility of the FAA. We work with the TSA when our 
interests overlap to further our missions of safety and security. We 
coordinated this rule change closely with the TSA. The TSA has 
significantly contributed to this rule and supports the rule change.

How Many Rules Are Affected by This Change?

    This change has significant effects on two rules. First, Title 14 
Code of Federal Regulations (14 CFR), 121.313(j), which applies to the 
operation of U.S. transport category all-cargo airplanes, is amended to 
permit operators to adopt a

[[Page 42875]]

TSA approved security program in lieu of installing reinforced doors. 
The second rule, 14 CFR 129.28(c), applies to the operation of 
transport category all-cargo airplanes by foreign operators within the 
United States. This amendment permits foreign operators to adopt a TSA 
approved security program in lieu of installing reinforced doors.

Why Were the Old Rules Adopted?

    The former rules were adopted in response to the terrorist attacks 
against the United States on September 11, 2001, and the ATSA enacted 
by Congress on November 19, 2001. The terrorist acts demonstrated a 
need to improve design as well as operational and procedural security 
of the flightdeck.

What Are the Flightdeck and the Flightdeck Door?

    The flightdeck, or cockpit, is that area where the pilots fly the 
airplane. The flightdeck door is what separates the pilots from the 
passengers on passenger airplanes. On passenger airplanes, there are 
operating rules that require a door between the flightdeck and the 
passenger compartment. These rules do not require that cargo airplanes 
have a flightdeck door. Some cargo airplanes have flightdeck doors and 
many do not.
    Traditionally, the door merely served as a privacy door to assure 
that the pilots were able to concentrate on flying the airplane. As 
discussed in the original reinforced door rulemakings, efforts were 
underway prior to the September 11, 2001, attacks to develop standards 
for a stronger door. The attacks led to the immediate adoption of those 
standards and the requirement for installation of stronger doors.

What Did the Old Rules Require?

    On January 15, 2002, parts 25 and 121 were amended to set new 
standards for flightdeck doors (Amendments 25-106 and 121-288; 67 FR 
2118; Docket No. FAA-2002-11032). Section 25.795 was amended to set 
standards for reinforcing flightdeck doors. The new standards require 
them to resist forcible intrusion and ballistic penetration.
    Section 121.313(f) was amended to mandate installation of the 
reinforced doors on certain airplanes not later than April 9, 2003. The 
affected airplanes included transport category all-cargo airplanes 
operated under part 121 which had flightdeck doors installed on or 
after January 15, 2002.
    On June 21, 2002, part 129 was amended to apply similar standards 
to foreign operators operating into the United States (Amendment 129-
33; 67 FR 42450; Docket No. FAA-2002-12504). Section 129.28 requires 
installation of the reinforced door not later than April 9, 2003. The 
affected airplanes include transport category all-cargo airplanes 
operated under part 129 which had flightdeck doors installed on or 
after June 21, 2002.
    On December 23, 2002, the FAA issued amendment No. 129-36 as a 
result of input received from a public hearing held on July 30, 2002, 
and comments received as a result of the rulemaking. Amendment 129-36 
clarifies the applicability of the part 129 regulation for foreign 
operators.
    In effect, section 355 of the Consolidated Appropriations 
Resolution, Pub. L. 108-007, postponed the compliance date for this 
section as to all-cargo aircraft until October 1, 2003. We have changed 
the cargo portion of the rule to replace the April 9, 2003, compliance 
date with October 1, 2003, to correspond to the Congressional action.

What Has Happened Since the Old Rules Were Adopted?

    The old rule was an FAA response to the potential security threat 
to cargo airplanes. Because of the urgency of the response, there was 
little time for receiving and evaluating a broad range of inputs on the 
issues and alternatives. But with time, and with additional input from 
knowledgeable parties, the FAA has identified several elements that 
convince us that a change is needed. Over the last year, the FAA has 
received information from parties through comments responding to 
several rulemakings, as well as petitions for exemption and a petition 
for rulemaking.

Public Comments on Prior Reinforced Flightdeck Door Rulemakings

    As discussed above, the FAA has had two rulemaking actions that 
established reinforced door requirements. We received public comments 
on both rules. The following discussion is limited to those comments 
related to this specific rule change. The FAA will respond to the other 
comments in a separate document that will be published later in the 
Federal Register.

Part 121

    Three pilot groups (Air Line Pilots Association International 
(ALPA), FedEx Pilots Association, and the Coalition of Airline Pilots 
Association (CAPA)), a public safety group (Aviation Policy Institute), 
and one individual suggested expanding the reinforced door requirement 
to all cargo airplanes. This would require installation of reinforced 
doors on cargo airplanes that do not already have any door. The 
principal arguments of those parties were centered on increased 
flightdeck security. Those commenters expressed concerns about the 
qualification, screening, and identification of the people authorized 
to ride on the subject airplanes.
    ALPA stated that meetings with safety representatives from many of 
the cargo airlines revealed it is potentially easier for an intruder to 
gain access to cargo airplanes because of limited ground security 
procedures, less secure ramp areas, and less scrutiny of persons 
carried on board cargo flights. ALPA stated that flight attendant and 
passenger intervention have been discussed as a strategy to defeat the 
attempts of an intruder to commandeer a passenger airplane. But cargo 
operators lack the potential benefit of flight attendant or passenger 
intervention.
    Additionally, three commenters proposed enhancement of flightdeck 
security beyond that provided by the reinforced doors, suggesting the 
use of dual doors (FedEx Pilots Association) and reinforcing the 
bulkheads between the flightdeck and other airplane areas (ALPA and the 
CAPA).
    Three operators and the Cargo Airline Association (CAA) and the Air 
Transport Association opposed the installation of the reinforced 
flightdeck doors in airplanes operated for the carriage of cargo. Those 
comments included two comments that the application of the reinforced 
flightdeck doors was impractical for the types of airplanes involved 
and the installation of doors would compromise emergency egress. They 
also stated it would be difficult to address issues, such as the rapid 
decompression, when retrofitting flightdeck doors to airplanes in which 
no door had been previously installed. Six commenters were opposed to 
the installation of flightdeck doors on cargo airplanes based upon 
economic considerations, including cost of the doors, installation 
costs, and lost revenues while airplanes were out of service for 
modifications. Further, two commenters indicated that the costs should 
be borne by the government.
    The CAA represents 13 all-cargo operators, including the largest 
operators. In its comments, the CAA argued that the ATSA did not 
require that cargo airplanes be equipped with the reinforced flightdeck 
door. Therefore, the FAA rule was procedurally deficient because there 
was inadequate justification for adopting the rule without prior public 
comment. The CAA also argued that the unique nature of cargo operations 
would

[[Page 42876]]

allow a screening program to provide the same level of security as a 
retrofit flightdeck door.

Part 129

    Seven of the 32 commenters to Amendment 129-33 addressed all-cargo 
operations. Except for the following three comments, commenters raised 
similar issues described in the discussion of part 121 above. One 
commenter stated that of all the various types of operators serving the 
U.S., cargo operators, particularly those that operate on a charter 
basis, pose the least risk of having their aircraft used as weapons by 
terrorists. The commenter contends that cargo charter operations do not 
publish a schedule for services and it would be difficult to know in 
advance when or where the airplane would be operated.
    Another commenter explained that crewmembers leave the flightdeck 
on a regular basis to visit the galley or lavatory and to perform in-
flight duties. There is no flight attendant to ensure the area is clear 
and secure before a flight crewmember leaves. Also, in the event of an 
intrusion when a flightcrew member is absent from the flightdeck, a 
reinforced door will prevent reentry to assist other flightcrew 
members. This commenter also states that this rule will place it at a 
competitive disadvantage compared to operators whose fleets are 
designed and operated with no doors.
    At the public meeting, one foreign cargo operator explained that he 
might not know until 3 hours before a flight which airplane would be 
used on flights to or from the U.S. The operator believed it would be 
much more efficient and effective to establish security procedures 
controlling who has access to the airplanes rather than modifying the 
doors.

Requests for Exemptions

    Since January 30, 2002, 11 cargo operators have filed exemption 
requests from the reinforced door requirements. Two sought relief from 
the requirement for internal locking devices on existing doors (Special 
Federal Aviation Regulation (SFAR) 92), three sought relief from part 
121, and six sought relief from part 129. In supporting the need for an 
exemption, requesters cited economic burden caused by the need to make 
modifications to their airplanes. In several instances, operators 
indicated that they have a small fleet of airplanes and engineering and 
design costs would be borne by them alone. The requesters also 
identified a safety concern with the requirements to close and lock the 
flightdeck doors. The safety concern is the lack of adequate emergency 
exits available to persons on either side of a locked reinforced door. 
Also, four operators indicated their security measures for allowing 
riders on their cargo airplanes are strict and would compensate for not 
reinforcing the door.

Petition for Rulemaking

    Atlas Air submitted a petition for rulemaking that requested the 
FAA allow cargo carriers to adopt enhanced security plans in lieu of 
the reinforced flightdeck doors. Most of the issues raised by Atlas 
were also raised by commenters on the prior reinforced flightdeck 
rulemakings discussed above. Atlas supported its request with the 
following points:
    [sbull] The original rule was premised on the inadequacy of then 
existing security procedures
    [sbull] The FAA has since issued detailed procedures for access to 
cargo airplane flightdecks
    [sbull] The TSA has since issued additional security requirements 
that cover certain cargo airplanes
    [sbull] Reinforced doors are necessary on passenger but superfluous 
on cargo airplanes
    [sbull] Cargo operations do not depend on riders
    [sbull] The number of persons on cargo airplanes is quite small
    [sbull] Pilots of cargo airplanes are more willing to exclude 
suspicious persons
    [sbull] Cargo operators can impose more screening without 
disrupting schedules
    [sbull] Access to cargo airplanes is tightly controlled by practice 
and regulation
    [sbull] A reinforced door is less effective on a cargo airplane 
since a terrorist may have an unfettered opportunity to penetrate it
    [sbull] Keeping terrorists off cargo airplanes is a better 
alternative
    [sbull] Cargo doors are expensive and resources could be better 
utilized elsewhere
    [sbull] Cost of reinforced doors is much higher than the FAA 
estimates
    [sbull] Money is better spent on security procedures keeping 
terrorists off cargo airplanes
    [sbull] Passenger airplanes are a higher priority for reinforced 
doors than cargo airplanes
    [sbull] Congress is urging a review of reinforced door requirements 
for cargo airplanes
    [sbull] ATSA mandated reinforced doors on passenger airplanes, not 
cargo airplanes
    [sbull] Two proposed bills before Congress would require 
reexamination of the issue

Why Are the Changes Better Than the Old Rule?

    This rule provides an alternative means of compliance for 
operators. It allows them to meet the security needs for their 
particular operation through security procedures rather than doors. 
This option will be available through the security expertise of the 
TSA. As the economic analysis later in this rule reflects, many 
operators have airplanes both with and without flightdeck doors. If 
they adopt security procedures for the airplanes with the doors, they 
must apply those same procedures to airplanes without doors. By 
providing the option, operators can decide where to concentrate their 
limited economic resources. Also, nothing in this rule prevents 
operators from using both doors and security procedures if they choose.

What Factors Influenced the Decision To Change the Rule?

Viability of Enhanced Security Procedures
    In acting quickly to establish current standards, the FAA included 
cargo airplanes with doors in the same security category with passenger 
carrying airplanes. At the time, security procedures for riders on 
cargo airplanes had not been enhanced. With a diverse population flying 
on commercial passenger airplanes, a reinforced door to the flightdeck 
is essential. In comparison, cargo operations transport far fewer 
riders, those riders are authorized by the company, and cargo operators 
have greater discretion in deciding who rides on the airplane. Security 
procedures can be adapted to fit the needs of cargo operations making 
the reinforced door less significant in terms of airplane security.
Safety Issues Unique to Cargo Designs
    People behind the locked doors on passenger airplanes have multiple 
exits from the plane. Cargo riders may not. On several models of cargo 
airplanes, some exits are blocked by cargo or by airplane 
modifications. Often, modifications of cargo airplanes result in 
emergency exits being on the other side of the flightdeck door. As a 
result, rider safety may be significantly compromised if a locked door 
blocks access to the exits. Without a better security option, the FAA 
originally concluded that this safety concern was outweighed by the 
security concern with highjacking. However, since enhanced security 
procedures are now a viable option, the safety of occupants in an 
emergency evacuation takes on a higher priority.

[[Page 42877]]

Differences in Locations of Persons on Flightdeck of Cargo and 
Passenger Airplanes
    The number and variety of persons who frequently ride on the 
flightdeck of cargo airplanes are different from those who ride on 
passenger airplane flightdecks. Under current screening procedures, 
persons may have access to the flightdeck on cargo airplanes without 
having undergone the same level of screening used on passenger 
airplanes. These persons may be in front of the door or behind it. As 
one commenter pointed out, locking a reinforced door could result in a 
``bad'' person being in front of the door, while preventing a ``good'' 
person seated behind the door from assisting the pilots. This may 
render reinforced doors less valuable on cargo airplanes.
Need for Tools and Equipment
    Cargo operators carry diverse cargo, such as animals and dangerous 
goods. This requires them to carry persons who need specialized tools 
and equipment during the flight. This necessary equipment is prohibited 
on passenger flights. Also, on passenger flights, crewmembers, Federal 
Air Marshals, and passengers can intervene to inhibit efforts to 
penetrate the reinforced doors. On cargo operations, the limited number 
of riders means a terrorist might have time and equipment to defeat the 
protection offered by the doors.
The Cost of the Doors
    The original analysis of reinforced door costs was made before 
designs had been proposed and approved. The FAA has learned that the 
door will cost substantially more than originally estimated. Instead of 
$17,000, nearly all doors will cost at least $50,000, and some as much 
as $210,000. This cost would be acceptable if it were the only 
alternative to preventing highjackings. But, with the enhanced security 
procedures now available, it is incumbent on the FAA to allow operators 
to select the option that best fits their needs.

What Comments Do You Believe Support This Rule Change?

    As discussed above, the petition of Atlas Air contained many 
suggestions and comments that were common to comments received on the 
original rules. As should be obvious from the rationale explained in 
the preceding answer, we found many of their points to be persuasive 
and thus supportive of this rule change.

What Comments Do You Believe Would Not Support This Rule Change?

    Many comments were received supporting the original rule. In 
particular, pilots and organizations representing pilots believed that 
the reinforced door was a valuable step toward assuring the safety of 
the flightcrew and ultimately the airplanes. These commenters urged 
additional steps for cargo airplanes, to include expanding the rule to 
require installation of reinforced doors on all cargo airplanes. This 
would require installation of reinforced doors on those cargo airplanes 
that have not had doors. This option will be discussed later.
    We expect that these commenters would not favor this rule change 
and would see it as a lessening of security. We expect to receive 
comments on this during the comment period. At this point, we are 
confident that the plans that will be approved by the TSA will be 
comparable to the security provided by the doors. As discussed above, 
we believe the change will be better than the reinforced doors in some 
respects.

Were There Comments Submitted on the Original Rules That Were Not 
Considered in This Rule Change?

    Yes. Some comments dealt with issues other than cargo airplanes. 
Some comments on cargo airplanes were not relevant to this rule change. 
We will respond to these comments in a separate document that will be 
published later in the Federal Register.

What Other Options Were Considered?

Maintaining the Status Quo
    We considered this option but decided that the status quo was no 
longer justified. When the rule was originally adopted, there was no 
alternative that would provide security for the flightdeck. As 
discussed previously, this is no longer the case and security 
procedures can provide a viable security alternative. Operators should 
have the option of selecting which alternative to use to meet the 
security goal.
Expanding the Reinforced Door Rule to All Cargo Airplanes
    As mentioned previously, this was an option originally supported by 
pilots and pilot organizations. Whether this is still the case in light 
of changes since adoption of the original rule will be revealed during 
the comment period on this rule.
    We do not believe that this expansion is either practical or 
necessary. Many cargo airplanes have no door between the pilot area and 
aft portions of the flightdeck. On some airplanes, there is existing 
structure that would readily support a new door. On many other 
airplanes, however, there is no structure to which a door could be 
fitted. We have spent over a year administering the current reinforced 
door rule. We have learned that simply replacing existing doors can be 
expensive and time-consuming, particularly in design development and 
approval. Undertaking a retrofit requirement for all cargo airplanes 
could not be done in the time frame relevant to this rule.
    Further, since we have identified security procedures as a valid 
alternative to a reinforced door in cargo operations, there is 
currently no justification for the substantial cost involved in 
retrofit.
    As discussed in the next question and answer, responsibility for 
aviation security and threat assessment resides with the TSA. If the 
TSA decides that the threat warrants expansion of the reinforced door 
requirement, the FAA will assist them in developing relevant rules and 
standards.
Expanding Cargo Security Requirements to All Cargo Operations
    The old rule, and this new rule change, cover only those cargo 
airplanes that had doors. With the transfer of security responsibility, 
the TSA assumed responsibility for developing and imposing security 
requirements on all aviation operations. As a result, the FAA no longer 
has the authority to unilaterally establish security requirements 
applicable to all cargo operators.
    Several operators, including Atlas Air, suggested that expansion of 
security programs to the entire air cargo industry would be beneficial. 
The FAA and TSA agree with those comments. The TSA will commence a 
separate rulemaking on this subject. We hope this expansion will be, in 
part, a consequence of this rule change. The FAA supports this 
expansion and will assist the TSA in implementing any changes it deems 
appropriate.
Eliminating the Ability of Cargo Carriers To Carry Supernumeraries
    We considered reducing the ability of cargo operators to carry 
supernumeraries. Under 14 CFR 121.547 and 121.583, supernumeraries are 
persons who may be on board but who are not essential to the actual 
operation of the airplane. Limiting the carriage of supernumeraries 
would have a crippling effect on many cargo operations. Although not in 
the passenger carrying business, cargo operators need to carry riders 
who can handle cargo either

[[Page 42878]]

during the flight or at remote destinations where trained support is 
not available. They often carry additional pilots for long flights and 
mechanics to service the airplane at remote locations. These concerns 
were identified in the petitions for exemption mentioned earlier. As a 
result, we conclude this is not a viable option for protecting the 
flightdeck of cargo airplanes.
    Supernumeraries were partially addressed by the original rule 
changes that accompanied the reinforced door requirements. In the 
original rules, we modified Sec.  121.547 and added Sec.  129.28(d) to 
limit the number of persons authorized on the flightdeck and required 
additional approvals for such access.
Case-by-Case Exemptions Allowing Security Programs in Lieu of 
Reinforced Doors
    We considered requiring individual exemption applications from 
cargo operators instead of a rule change. This has been the process for 
dealing with problems raised under SFAR 92 with its requirement for 
internal locking devices on flightdeck doors. This has not been 
efficient, even for the relatively small number of SFAR exemptions.
    We anticipate that most, if not all, cargo operators would file 
exemption requests should we adopt this option instead of a rule 
change. Dealing with exemption requests would be inefficient and lead 
to lengthy delays and uncertainty, even if most petitioners raised the 
same issues. Our immediate adoption of this rule seeks to avoid 
uncertainty. Also, just as the operators wish to focus their resources 
on addressing security, we want to use our resources on matters other 
than individual exemption requests.

Does This Rule Establish Specific Security Requirements?

    This rule does not require specific security procedures. Rather, a 
carrier may choose to adopt a security program rather than harden its 
doors. Security programs may vary from operator to operator because 
airplanes used, routes and missions flown, and persons carried are not 
uniform. Instead of establishing specific criteria for a security 
program, this rule provides flexibility to the operator and the TSA to 
meet specific needs and threats.

Who Will Approve New Security Procedures?

    The TSA is the agency with approval authority for security programs 
and procedures related to alternative compliance with this rule. 
Operators who have principal security inspectors should work with them 
in preparing programs and procedures.

Is This an Airplane Security Issue or an Economic Issue?

    Implementation of any security measure carries with it some costs. 
The subsequent economic analysis discusses the relative costs of 
installing reinforced doors versus adopting a security program. 
Adopting the security program option will cost operators less than 
installing the reinforced doors. If this were not the case, operators 
would opt for the doors instead of the security program. But this rule 
is not just about money. As discussed previously, reinforced doors are 
not as effective a security measure on cargo airplanes as on passenger 
airplanes. On many cargo designs, reinforced doors raise safety issues 
that do not exist on passenger airplanes. Although cost is an issue, it 
is not the deciding factor in adopting this rule. Security is 
paramount.

Will Cargo Airplanes Be Less Secure if Reinforced Doors Are Not 
Required?

    Airplanes would be less secure if the requirement were dropped 
without any compensating action. The compensating action expected in 
this rule is development and implementation of alternative security 
plans to control who enters cargo aircraft. This will compensate for 
the lack of doors by keeping potential terrorist's out of the airplane.
    As explained above, this rule does not itself establish the 
criteria for the new program. That program will come from the TSA.
    Most importantly, when a security plan is developed, it can be used 
by all cargo operators, not just those with doors. The result will be 
greater security for all cargo operations, not just those with existing 
doors.
    Also as discussed above, we believe that the reinforced doors 
produce vulnerabilities both from a safety and security standpoint that 
are not present in passenger carrying operations. Providing an 
alternative to installing reinforced doors reduces those risks.

What Airplanes or Operations Will Be Affected by This Rule Change?

    This rule will affect both U.S. and foreign operators. For foreign 
operators, this rule also clarifies the coverage of the rule.
    For U.S. certificated operators, only those operations conducted 
under part 121, utilizing transport category airplanes, for the sole 
purpose of the carriage of cargo, will be affected. And those 
operations are only affected if they had a flightdeck door installed on 
or after January 15, 2002. Those all-cargo operators electing to 
achieve compliance through a TSA approved security program must apply 
the security program to the operator's entire fleet of aircraft, not 
just those with doors. There will be no change for those cargo 
operators who elect to install the reinforced flightdeck door.
    Foreign operators conducting cargo operations under Sec.  129.1(a) 
are covered when they are operating airplanes with a payload capacity 
greater than 7,500 pounds and with a flightdeck door installed on or 
after June 21, 2002. Those all-cargo operators electing to achieve 
compliance through a TSA approved security program must apply the 
security program to the operator's entire fleet of aircraft, not just 
those with doors. There will be no change for those cargo operators who 
elect to install the reinforced flightdeck door. In addition, nothing 
precludes a foreign all-cargo air carrier from implementing a TSA 
security program in addition to reinforcing its flightdeck doors.

Why Does the Rule Have a June 21, 2002, Threshold Date for Foreign 
Operators and a January 15, 2002, Threshold Date for U.S. Operators?

    Section 129.28(a)(2) establishes a compliance threshold date of 
June 21, 2002. Section 121.313(j)(2) establishes a compliance threshold 
date of January 15, 2002. These threshold dates identify the airplanes 
that must comply with the rule, and maintains the applicability of the 
requirement even if operators remove the non-reinforced doors after 
that date. If an airplane had a non-reinforced door in place 
(installed) on the threshold date, or if one is installed on the 
airplane after that date, then the rule requires that such a door be 
replaced with a reinforced door. Without the threshold date, operators 
could avoid compliance with the rule by removing the non-reinforced 
doors. The threshold dates correspond with the issue dates of the 
original rules imposing the reinforced door requirement on operators. 
The dates differ because the original rules were not issued at the same 
time.

How Will Compliance Be Monitored?

    The FAA is working with the TSA to establish procedures to share 
information and monitor compliance with various aspects of aircraft 
security. This is a new relationship and details on specific aspects of 
the cooperative monitoring effort are not currently in place. We 
expect, however, that the TSA approval of programs under this rule will 
occur in cooperation with the FAA

[[Page 42879]]

and the FAA will receive information on approved programs either 
directly from the TSA or through reporting requirements placed on 
operators. A formal process for either of these alternatives will be 
established to assure compliance by affected operators.

Regulatory Evaluation Summary

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs each Federal agency to 
propose or adopt a regulation only upon a reasoned determination that 
the benefits of the intended regulation justify its costs. Second, the 
Regulatory Flexibility Act of 1980 requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act (19 U.S.C. sections 2531-2533) prohibits agencies 
from setting standards that create unnecessary obstacles to the foreign 
commerce of the United States. In developing U.S. standards, this Trade 
Act requires agencies to consider international standards and, where 
appropriate, use them as the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies 
to prepare a written assessment of the costs, benefits, and other 
effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation.)
    In conducting these analyses, the FAA has determined this rule (1) 
has benefits which justify its costs; (2) is a ``significant regulatory 
action'' as defined in section 3(f) of Executive Order 12866 and is 
``significant'' as defined in DOT's Regulatory Policies and Procedures; 
(3) will not have a significant impact on a substantial number of small 
entities; (4) will have little effect on international trade; and (5) 
does not impose an unfunded mandate on state, local, or tribal 
governments, or on the private sector. The FAA has placed these 
analyses in the docket and summarizes them below.

How Many Operators and Airplanes Are Affected by the Rule?

    The FAA determined that 46 U.S. air cargo carriers with 1,132 
transport category cargo airplanes operate under part 121. Brokers and 
leasing companies currently hold 125 turbojet cargo airplanes that 
could be operated under part 121. Thus, 1,257 cargo airplanes could be 
affected by this rule. The FAA determined that 540 of these airplanes 
have a flightdeck door, while 26 air cargo carriers operate at least 
one airplane with a flightdeck door. Of these 26 air cargo operators, 3 
are likely to be large operators (more than 50 airplanes), 9 are likely 
to be medium sized operators (between 10 and 50 airplanes), and 14 are 
likely to be small operators (fewer than 10 airplanes).

What Are the Uncertainties Affecting the Potential Costs of This Rule?

    The cost of a security program could be significantly reduced if 
the air cargo carrier does not transport any people other than its own 
employees. To avoid underestimating the potential total cost, the FAA 
assumed that every affected air cargo operator will occasionally 
transport people other than their employees. Further, the TSA has not 
finalized its requirements. This regulatory evaluation does not assume 
that the TSA will require the screening of cargo. The next question 
identifies some assumptions about the content of the potential security 
program. We have not included the potential costs of screening air 
cargo itself in the estimated costs of these security programs.

What Are the Bases for the Estimated Costs of a Security Program?

    For the purpose of this economic analysis, we have assumed, for 
cost purposes only, that the following types of costs might be 
incurred. Actual costs may vary between programs sought by operators 
and approved by the TSA. Further, the TSA may choose to require certain 
components of a security plan that will differ from the assumptions 
included in the FAA cost analysis. The FAA assumes that air cargo 
carriers will incur costs from reviewing their employee employment 
files, performing employee background checks, developing procedures to 
perform security clearances on non-employee passengers, and applying to 
the TSA for approval in creating their programs. They will incur 
similar annual costs in operating the program.

How Much Will It Cost To Establish and Operate a Security Program?

    The FAA estimates that establishing a security program will cost, 
on average, about $250,000 for a large air cargo airline, about $75,000 
for a medium sized air cargo airline, and about $20,000 for a small air 
cargo airline. The annual cost to operate a security program will 
average about $120,000 at a large air cargo airline, about $40,000 at a 
medium sized air cargo airline, and about $10,000 at a small air cargo 
airline. Thus, if all of the affected air cargo carriers chose to 
establish security programs, the total first-year cost will be $1.705 
million. However, several air cargo operators have voluntarily 
developed personnel security programs that include some or most of the 
activities envisioned by the FAA in its cost estimates. Thus, those air 
cargo operators have already made many of these expenditures and their 
estimated costs will be lower than those projected. Nevertheless, in 
order to ensure that the costs are not underestimated, the FAA assumed 
that no air cargo operator has such a program. Using an anticipated 5.3 
percent growth rate of the air cargo industry, the annual costs of 
operating security programs for 10 years would be $10.265 million. 
Thus, it will cost air cargo operators a total of $12.330 million, 
which has a present value of $9.217 million using the 7 percent 
discount rate required by the Office of Management and Budget.

How Much Will It Cost To Install Reinforced Flightdeck Security Doors?

    The FAA calculated that installing reinforced doors on the 540 
cargo airplanes would cost air cargo operators $66.5 million in 2003.

                                  Table 1.--Average Cost Per Airplane To Install a Reinforced Door by Type of Airplane
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Numbers of                 Number of     Lost net                   Total
                      Type of airplane                          Door kit   labor hours  Total labor  days out-of-  revenue per  Total  lost    costs to
                                                                  cost      to install     costs        service        day      net revenue    install
--------------------------------------------------------------------------------------------------------------------------------------------------------
727.........................................................      $65,000           96       $7,680           2        $20,500      $41,000     $113,680
737.........................................................       50,000           96        7,680           2          4,500        9,000       66,680
747/100/200/300.............................................      210,000          172       13,760           4         24,500       98,000      321,760
747/400.....................................................       51,500           96        7,680           2         24,500       49,000      112,020
757.........................................................       50,000           96        7,680           2         20,500       41,000       98,680
767.........................................................       50,000           96        7,680           2         20,500       41,000       98,680
DC-10.......................................................       50,000           96        7,680           2         24,500       49,000      106,680

[[Page 42880]]

 
DC-8........................................................       42,000           72        5,760           2         20,500       41,000       88,760
DC-9........................................................       42,000           72        5,760           1.5        4,500        6,750       54,530
MD-10/11....................................................       45,000           96        7,680           2         24,500       49,000      101,680
A-300.......................................................       50,000          192       15,360           4         20,500       82,000      147,360
A-300-600...................................................       50,000          192       15,360           4         20,500       82,000      147,360
A-310.......................................................       50,000          192       15,360           4         20,500       82,000      147,360
--------------------------------------------------------------------------------------------------------------------------------------------------------

Are There Any Other Costs That Would Be Associated With These 
Reinforced Doors?

    Reinforced flightdeck security doors have electronic systems that 
would need to be periodically inspected, maintained, and possibly 
repaired. It would take 8 additional maintenance labor hours every year 
for these tasks, and the average annual materials costs are minimal. 
These increased maintenance costs would total 4.4 million between 2004 
and 2013, which has a present value of 3.0 million.
    Reinforced flightdeck security doors and associated doorway 
strengthening materials would add weight to the airplane, which would 
increase fuel consumption. The FAA estimated that the installed door 
would add 120 pounds to a large cargo airplane, 90 pounds to a medium 
sized cargo airplane, and 75 pounds to a small cargo airplane. Each 
additional pound increases annual fuel consumption by 12.25 gallons for 
a large cargo airplane, 19.1 gallons for a medium sized cargo airplane, 
and 5.75 gallons for a small cargo airplane. Using a price of $0.80 per 
gallon, the annual additional fuel cost would be $700,000 in 2004, 
increasing to $1.1 million in 2013. These additional fuel costs would 
total $9.5 million between 2004 and 2013, which has a present value of 
$6.7 million.

What, Then, Are the Total Costs of Installing These Doors?

    As shown in Table 2, the total costs of installing reinforced 
security flightdeck doors would be about $80.450 million, which has a 
present value of about $76.225 million. Of particular note is that the 
biggest expenditure of $66.5 million would occur in 2003, the first 
year.

Table 2.--Total and Present Values in 2003 of Costs To Install Reinforced Security Doors in Cargo Airplanes That
                                         Currently Have Flightdeck Doors
                                            [In millions of dollars]
----------------------------------------------------------------------------------------------------------------
                    Increased
    Cost to        maintenance     Present value     Increased     Present value                   Present value
 retrofit doors    cost  (2004-      increased      fuel costs    increased fuel    Total cost      total cost
                      2013)         maintenance     (2004-2013)        cost
----------------------------------------------------------------------------------------------------------------
      $66.499           $4.406          $3.007          $9.542          $6.722         $80.447         $76.228
----------------------------------------------------------------------------------------------------------------

What Is the Net Economic Impact of This Rule?

    If all air cargo operators affected by the final rule chose to 
develop a TSA-approved security program instead of installing 
reinforced flightdeck security doors, they would save about $68.117 
million between 2003 and 2013, which has a present value of $67.011 
million. More importantly, they would save $64.704 million by April 9, 
2003. It should be noted that to the extent that several air cargo 
operators have voluntarily developed these programs, the cost savings 
have been underestimated. Further, an individual operator has the 
option to install the reinforced flightdeck security door if it would 
be financially advantageous. Thus, the FAA determined that this rule 
provides substantial cost savings to affected air cargo operators.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
businesses, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA. However, if an agency determines that a proposed or final rule 
is not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    This action provides equal regulatory relief to all air cargo 
carriers. Therefore, the FAA certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. The FAA assessed the potential effect of this rulemaking and 
determined that it provides equal

[[Page 42881]]

regulatory relief to both U.S. (under part 121) and foreign air cargo 
carriers (under part 129). Therefore, the FAA determined that this rule 
will have a minimal effect on international trade.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in a $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.''
    This final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

What Other Assessments Has the FAA Conducted?

Paperwork Reduction Act

    There are no current or new requirements for information collection 
associated with this amendment.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these regulations.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action will not have a substantial direct effect on the States, or the 
relationship between the national Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, and therefore does not have federalism implications.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this rulemaking action qualifies for a 
categorical exclusion.

Energy Impact

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, 
as amended (42 U.S.C. 6362) and FAA Order 1053.1. We have determined 
that the final rule is not a major regulatory action under the 
provisions of the EPCA.

Plain English

    Executive Order 12866 (58 FR 51735, October. 4, 1993) requires each 
agency to write regulations that are simple and easy to understand. We 
invite your comments on how to make this final rule easier to 
understand, including answers to questions such as the following:
    [sbull] Are the requirements in the regulations clearly stated?
    [sbull] Do the regulations contain technical language or jargon 
that interferes with their clarity?
    [sbull] Would the regulations be easier to understand if they were 
divided into more (but shorter) sections?
    [sbull] Is the question and answer format helpful in understanding 
the regulations?
    Please send your comments to the address specified in the ADDRESSES 
section.

What Urgency Requires Immediate Adoption of These Changes?

    Under current rules, operators should have installed reinforced 
doors by April 9, 2003, or the airplane could not be operated after 
that date. However, the 2003 Consolidated Appropriations Resolution 
mentioned previously effectively postponed the compliance date for all-
cargo aircraft. Absent additional action by Congress, this legislative 
provision will expire on September 30, 2003. As a result, effective 
October 1, 2003, cargo operators will have to have installed doors on 
the affected aircraft or not operate those aircraft.
    We have changed the April 9, 2003, date to October 2003, to 
correspond with the Congressional action. Time is of the essence to 
operators. The doors are expensive and there is a significant lead-time 
required to order and install the doors. Cargo operators need to know 
immediately that there is an alternative to installation of reinforced 
doors.
    Additionally, operators need time to evaluate the requirements of 
the TSA security procedures, and determine if they can adopt a new 
security program before the deadline. Delaying the rule for notice and 
comment would create uncertainty for operators, and frustrate the 
purpose of the rule.
    Further, the FAA received a large number of public comments on this 
subject through the other rulemakings discussed in this document. We 
considered those comments in developing this rule.
    Sections 553(b)(3)(B) and 553(d)(3) of the Administrative 
Procedures Act (APA) (5 U.S.C. sections 553(b)(3)(B) and 553(d)(3)) 
authorize agencies to dispense with certain notice procedures for rules 
when they find ``good cause'' to do so. Under section 553(b)(3)(B), the 
requirements of notice and opportunity for comment do not apply when 
the agency, for good cause, finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' In 
the context of the APA, impracticable means that, if notice and comment 
procedures were followed, they would defeat the purpose of the rule. As 
explained above, the delay associated with notice and comment would 
negate the security option as a viable alternative to the reinforced 
door requirement.
    For the reasons discussed previously in this document, the FAA 
finds that notice and public comment on this final rule are 
impracticable, unnecessary, and contrary to the public interest. This 
final rule must be adopted promptly to create the certainty and the 
time needed by cargo operators to meet the airplane security 
requirements.

Lists of Subjects

14 CFR Part 121

    Air carriers, Aircraft, Airmen, Aviation safety, Reporting and 
recordkeeping requirements, Safety, Transportation.

14 CFR Part 129

    Aircraft, Aviation safety, Reporting and recordkeeping 
requirements, Safety, Transportation.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends 14 CFR parts 121 and 129 as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

0
1. The authority citation for part 121 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105.


0
2. Sections 121.313(j)(1) and (2) are revised to read as follows:

[[Page 42882]]

Sec.  121.313  Miscellaneous equipment.

* * * * *
    (j) * * *
    (1) After April 9, 2003, for airplanes required by paragraph (f) of 
this section to have a door between the passenger and pilot or crew 
rest compartments,
    (i) Each such door must meet the requirements of Sec.  25.795(a)(1) 
and (2) in effect on January 15, 2002; and
    (ii) Each operator must establish methods to enable a flight 
attendant to enter the pilot compartment in the event that a flightcrew 
member becomes incapacitated. Any associated signal or confirmation 
system must be operable by each flightcrew member from that flightcrew 
member's duty station.
    (2) After October 1, 2003, for transport category, all-cargo 
airplanes that had a door installed between the pilot compartment and 
any other occupied compartment on or after January 15, 2002, each such 
door must meet the requirements of Sec.  25.795(a)(1) and (2) in effect 
on January 15, 2002; or the operator must implement a security program 
approved by the Transportation Security Administration (TSA) for the 
operation of all airplanes in that operator's fleet.

PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF 
U.S. REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE

0
3. The authority citation for part 129 continues to read as follows:

    Authority: 49 U.S.C. 1372, 40113, 40119, 44101, 44701-44702, 
44705, 44709-44711, 44713, 44716-44717, 44722, 44901-44904, 44906, 
44912, 46105, Pub. L. 107-71 sec. 104.49 U.S.C.

0
4. Sections 129.28(c)(1), (2), and (3) are revised to read as follows:


Sec.  129.28  Flightdeck security.

* * * * *
    (c) * * *
    (1) Except for a newly manufactured airplane on a non-revenue 
delivery flight, no foreign air carrier covered by Sec.  129.1(a) may 
operate:
    (i) After April 9, 2003, a passenger carrying transport category 
airplane within the United States, except on overflights, unless the 
airplane's flightdeck door installation meets the requirements of 
paragraphs (c)(2) and (c)(3) of this section or an alternative standard 
found acceptable to the Administrator.
    (ii) After October 1, 2003, a transport category all-cargo airplane 
that had a door installed between the pilot compartment and any other 
occupied compartment on or after June 21, 2002, within the United 
States, except on overflights, unless the airplane's flightdeck door 
installation meets the requirements of paragraphs (c)(2) and (c)(3) of 
this section or an alternative standard found acceptable to the 
Administrator; or the operator must implement a security program 
approved by the Transportation Security Administration (TSA) for the 
operation of all airplanes in that operator's fleet.
    (2) The door must resist forcible intrusion by unauthorized persons 
and be capable of withstanding impacts of 300 joules (221.3 foot-
pounds) at the critical locations on the door, as well as a 1,113-
newton (250 pounds) constant tensile load on the knob or handle, and
    (3) The door must resist penetration by small arms fire and 
fragmentation devices to a level equivalent to Level IIIa of the 
National Institute of Justice Standard (NIJ) 0101.04.
* * * * *

    Issued in Washington, DC, on July 11, 2003.
Marion C. Blakey,
Administrator.
[FR Doc. 03-18075 Filed 7-17-03; 8:45 am]
BILLING CODE 4910-13-P